There's a timing problem, however. [Update] There WAS a timing problem. The court authorized Apple to take a shortcut. [/Update] Under the court's rules, Apple can't bring such a motion without a "meet and confer" between both parties' lead counsel. The purpose of those M&C's is that courts want the parties' lawyers to work out as many case management issues as possible. Most of the time, there's an agreement on administrative matters regardless of substantive disagreement. Motions to compel are part of the issues that require a previous M&C.

But Samsung's lead counsel, Quinn Emanuel's star patent litigator Charles Verhoeven, is currently in Washington DC to represent Motorola at an ITC hearing against Apple. That hearing began yesterday (with a pre-hearing conference, so it really just starts today) and will last until December 16. By the time he returns and possibly meets with Apple's lead counsel, it will be too late for Apple to have its motion heard before the end of the year. What riles Apple is that he doesn't waive the requirement for an in-person M&C (Apple believes the court would allow a conference call instead) or authorize one of his deputies to discuss this with Apple's lawyers.

There are two timing issues here. The primary issue is that Samsung is, according to Apple, uncooperative with respect to the production of evidence. The secondary one is that the unavailability and inflexibility of Samsung's lead counsel now prevent Apple from tackling the primary issue through a motion to compel. [Update] By granting Apple relief from the meet-and-confer requirement, Judge Koh resolved the secondary problem and enabled Apple to try to resolve the primary timing issue. [/Update]

"Samsung has produced almost no documents relating to Apple's offensive case [the claims and counter-counterclaims Apple brought against Samsung; in the same litigation, there are also counterclaims brought by Samsung against Apple, which used to be a separate lawsuit until both cases were consolidated into one] since its Preliminary Injunction production in early October 2011. Since October 13, 2011, the date of the Preliminary Injunction hearing in this case, Samsung has produced only 71 documents totaling 241 pages in connection with Apple's infringement claims against Samsung. [...] All of those 71 documents were attachments that had been missing from e-mails Samsung had produced with its Preliminary Injunction production. [...] Apple, meanwhile, has produced over one million pages in connection with its infringement claims against Samsung.

Once Apple receives documents from Samsung, Apple will need to translate Samsung's Korean-language documents, analyze highly technical materials and source code, and piece together the design history of over thirty Samsung accused products before travelling to Korea to take depositions. Apple will also need significant time to review any materials that are produced to determine if anything is missing and plan further discovery. If Apple does not receive production of the core design, marketing, and technical documents sought in the motion to compel well before January 2012, Apple’s ability to conduct meaningful depositions and properly defend its own witnesses in depositions will be unduly compromised."

Apple asked Judge Koh to grant relief from the M&C requirement so that Apple can bring its motion immediately and the court can hear Apple's motion to compel "on or about December 16, 2011" since "[a] January 2012 hearing on Apple's motion to compel would prejudice Apple's ability to proceed with discovery in a timely, orderly fashion". In this context, Apple pointed to the scheduled fact discover cutoff date in this case, which is March 8, 2012.

Apple's motion for relief from the M&C requirement has letters and emails attached that the parties' lawyers exchanged recently. I've read those documents and I can see why Apple's patience was finally exhausted.

[Update] On Friday, December 9, 2012, Judge Koh decided: "Good cause appearing, Apple's request for temporary relief from the requirement that lead counsel meet and confer in person is GRANTED. The relief requested applies to Apple’s concurrently filed motion to compel only." [/Update]

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About Me

Florian Mueller is a former award-winning intellectual property activist with 25 years of software industry expertise spanning across different market segments (games, education, productivity and infrastructure software), diverse business models and a variety of technical and commercial areas of responsibility. In recent years, Florian advised a diversity of clients on the patent wars surrounding mobile devices, and on their economic and technical implications. (In order to avoid conflicts of interest, Florian does not hold or initiate transactions in any technology stocks or derivatives thereof.) He is now developing a game app for smartphones and tablet computers.